Venkit alias Venkataraman vs The State of Tamil Nadu

K.M. Natarajan, J.—The detenu himself has filed this writ petition under Article 226 of the Constitution of India for the issue of a writ of Habeas Corpus to quash the order of detention passed against him. The impugned order was passed by the second respondent in exercise of power under S. 3(3) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) (hereinafter referred to as "the said Act") with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. He was detained on 13th May, 1987 and the same was approved on 21st May, 1987. Though the order was challenged on many grounds, the learned counsel for the petitioner restricts his arguments to the only ground, namely, that there is absolutely nothing to detain the petitioner and the detaining authority ought not to have relied on the first two instances, viz., the convictions in the years 1982 and 1983, as they are stale and reliance on the stale incidents vitiates the order as there is no case after 1983 till April, 1987. It is also now submitted by the learned counsel for the petitioner that in those the petitioner was convicted in 1984 and that must be excluded. Then the only instance case remains to be considered is the third instance and hence there is absolutely nothing to hold that the petitioner habitually commits the similar offences and as such he is a Goonda as per the definition of S. 2(f) of the Act.

In the reply affidavit filed by the second respondent, it is only stated that regarding the contention in ground (i) of paragraph 5 of the affidavit, it is not correct to say that the previous convictions undergone by the detenu cannot be termed as stale material. It is submitted that there are sufficient materials to show that the detenu is a habitual criminal and is a threat to public order. The learned counsel for the petitioner drew our attention to the definition of "Goonda" which the Act deals as follows;

''Goonda'' means a persons, who either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences, punishable under Chapter 16 or Chapter 17 or Chapter 22 of the Indian Penal Code.

In this case admittedly the first and second instances ended in conviction only on 3rd May, 1984 and the third instance is on 15th April, 1987 and that too in pursuance of the confession given in the ground case. The said case was registered. Hence, there is a long interval of 3 years from the instances 1 and 2 and the instance No.3. Hence, instance''s 1 and 2 cannot be taken into consideration to find out whether the detenu is a Goonda, that is, he is habitually committing the same offence. In this connection, the learned counsel for the petitioner also drew our attention to the decision of the Supreme Court reported in Vijay Narain Singh Vs. State of Bihar and Others, , wherein Their Lordships in the Supreme Court considered the definition of "habitual offender" and observed as follows:

The expression ''habitually'' means ''repeatedly'' or ''persistently'', It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not insolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-Clauses or an aggregate of similar acts or omissions. This appears to be clear from the use of the word ''habitually'' separately in Sub-Cl. (i), Sub-Cl. (ii) and sub-Cl. (iv) of S. 2(d) and not in Sub-Cl. (iii) and (v) of S. 2(d).

In another place Their Lordships observed:

A single act or omission falling under sub-Cl. (i) and a single act or omission, falling under sub-Cl. (iv) of S. 2(d) cannot, therefore, be characterised as a habitual act or omission referred to in either of them. Because the idea of ''habit'' involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them they cannot be treated as habitual ones.

In the above quoted case also Their Lordships of the Supreme Court eschewed few instances which related to the earlier period, more than 7 years and ultimately quashed the order of detention. It is worthwhile to refer to the observations of Venkataramiah, J., in this connection.

It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention.

In the instant case also, in view of the fact that there is sufficient interval of 3 years between the first two instances and third instance and as such we are of the view that the petitioner cannot be termed as "Goonda" so as to attract the provisions of S. 2(f) of the Tamil Nadu Act 14/1982. Then unless it is established that he is a goonda, the question of detaining him under the provisions of the said Act does not arise. The order of detention is vitiated.

In the result the petition is allowed. The order of detention is hereby quashed. The petitioner is directed to be set at liberty forthwith if he is not wanted in any other case.